B-144969, MARCH 10, 1961, 40 COMP. GEN. 505

B-144969, MARCH 10, 1961, 40 COMP. GEN. 505

MILITARY PERSONNEL - LEGAL TRAINING - LEAVE STATUS PROHIBITION - OFF DUTY A PROGRAM WHEREBY ARMY OFFICERS WOULD BE GRANTED EXCESS LEAVE, WITHOUT PAY OR ALLOWANCES, TO ATTEND LAW SCHOOLS AT THEIR OWN EXPENSE AND DURING SUMMER VACATIONS WOULD BE ORDERED TO ARMY INSTALLATIONS TO RECEIVE MILITARY TRAINING AND PERFORM MILITARY DUTY WOULD NOT BE IMPROPER IN VIEW OF THE AUTHORITY OF THE SECRETARY UNDER 37 U.S.C. 33 (B) TO PLACE OFFICERS IN AN EXCESS LEAVE STATUS WITHOUT PAY AND ALLOWANCES AND IN VIEW OF THE FACT THAT NO APPROPRIATED FUNDS WOULD BE USED FOR ANY OF THE LAW SCHOOL EXPENSES. THE OFF-DUTY TRAINING EXCEPTION IN SECTION 517 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, 72 STAT. 532, WHICH PRECLUDES THE USE OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION APPLIES TO MEMBERS OF THE UNIFORMED SERVICES WHO ARE IN AN ACTIVE MILITARY STATUS AND CONTEMPORANEOUSLY FURTHERING THEIR EDUCATION ON THEIR OWN TIME WHILE NOT ENGAGED IN MILITARY DUTIES, BUT SUCH EXCEPTION IS NOT APPLICABLE TO A LEGAL TRAINING PROGRAM FOR REGULAR OFFICERS WHO ARE IN AN EXCESS LEAVE STATUS WITHOUT PAY AND ALLOWANCES WHILE ATTENDING LAW COURSES FOR THE PURPOSE OF QUALIFYING AS LAWYERS AND, THEREFORE, THE PAYMENT OF TUITION FOR SUCH TRAINING COMES WITHIN THE PROHIBITION AND MAY NOT BE AUTHORIZED.

TO THE SECRETARY OF THE ARMY, MARCH 10, 1961:

BY LETTER OF JANUARY 31, 1961, THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (1FINANCIAL MANAGEMENT) REQUESTED A DECISION AS TO THE APPLICABILITY OF THE LANGUAGE CONTAINED IN SECTIONS 517 AND 521 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1961, PUBLIC LAW 86-601, 74 STAT. 352, 353, TO A PROPOSED PROGRAM FOR OBTAINING LEGAL OFFICERS FOR THE JUDGE ADVOCATE GENERAL'S CORPS. THE REQUEST HAS BEEN ASSIGNED NUMBER SS-A-548 THROUGH CLEARANCE WITH THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 517 PROVIDES THAT:

NONE OF THE FUNDS PROVIDED IN THIS ACT SHALL BE AVAILABLE FOR TRAINING IN ANY LEGAL PROFESSION NOR FOR THE PAYMENT OF TUITION FOR TRAINING IN SUCH PROFESSION: PROVIDED, THAT THIS LIMITATION SHALL NOT APPLY TO THE OFF-DUTY TRAINING OF MILITARY PERSONNEL AS PRESCRIBED BY SECTION 521 OF THIS ACT.

AND SECTION 521 PROVIDES THAT:

NO APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PAYMENT OF MORE THAN 75 PERCENTUM OF CHARGES OF EDUCATIONAL INSTITUTIONS OR EXPENSES FOR OFF-DUTY TRAINING OR MILITARY PERSONNEL, NOR FOR THE PAYMENT OF ANY PART OF TUITION OR EXPENSES FOR SUCH TRAINING FOR COMMISSIONED PERSONNEL WHO DO NOT AGREE TO REMAIN ON ACTIVE DUTY FOR TWO YEARS AFTER COMPLETION OF SUCH TRAINING.

THE DEPUTY ASSISTANT SECRETARY STATES THAT UNDER THE PROPOSED PROGRAM, TO BE IMPLEMENTED IN ORDER TO ALLEVIATE A CRITICAL SHORTAGE OF EXPERIENCED OFFICERS IN THE JUDGE ADVOCATE GENERAL'S CORPS, SELECTED GRADUATES OF THE RESERVE OFFICERS' TRAINING CORPS PROGRAM WOULD BE APPOINTED OFFICERS IN THE REGULAR ARMY, BE GRANTED EXCESS LEAVE WITHOUT PAY OR ALLOWANCES, AND BE PERMITTED TO ATTEND LAW SCHOOL AT THEIR OWN EXPENSE. THE SAME PROGRAM IS CONTEMPLATED FOR INTERESTED REGULAR ARMY OFFICERS NOW SERVING ON ACTIVE DUTY. THE PROGRAM OFFICERS WOULD BE ASSIGNED TO ARMY INSTALLATIONS NEAR THEIR LAW SCHOOLS; AND DURING SUMMER RECESS, THEY WOULD BE PERFORMED IN A STAFF JUDGE ADVOCATE'S OFFICE, AT A MILITARY SCHOOL, OR IN SOME OTHER ASSIGNMENT WHERE THE OFFICERS WOULD RECEIVE MILITARY TRAINING; AND DURING SUCH PERIODS OF DUTY PAY AND ALLOWANCES WOULD BE PAID FOR ANY TRAVEL DURING THESE PERIODS OF ACTIVE DUTY, NO TRAVEL ALLOWANCES WOULD BE GIVEN FOR TRAVEL BETWEEN THE ASSIGNED INSTALLATIONS AND THE LAW SCHOOLS BEING ATTENDED. THE OFFICERS INVOLVED WOULD BE REQUIRED TO SERVE A MINIMUM PERIOD OF THREE YEARS AFTER COMPLETION OF THEIR LAW SCHOOL WORK.

THE SECRETARY OF THE ARMY MAY GRANT MEMBERS OF THE ARMY LEAVE IN EXCESS OF THE NUMBER OF DAYS' LEAVE PROVIDED FOR BY STATUTE; AND WHERE SUCH EXCESS LEAVE IS AUTHORIZED BY THE SECRETARY, NO ENTITLEMENT ACCRUES TO PAY OR ALLOWANCES DURING SUCH ABSENCES. SEE 37 U.S.C. 33 (B). SINCE THE PROPOSED PROGRAM WOULD PLACE THE OFFICERS INVOLVED IN AN EXCESS LEAVE STATUS WITHOUT PAY OR ALLOWANCES AND SINCE APPROPRIATED FUNDS ARE NOT TO BE UTILIZED TO DEFRAY ANY OF THE LAW SCHOOL EXPENSES THAT WILL BE INCURRED, WE CAN PERCEIVE NO LEGAL BASIS FOR OBJECTING TO THE PROPOSED PROGRAM AS OUTLINED ABOVE.

THE DEPUTY ASSISTANT SECRETARY FURTHER STATES THAT THE DEPARTMENT WOULD ALSO DESIRE TO PAY A PORTION OF THE NEW LAW SCHOOL TUITION AND EXPENSES OF THESE OFFICERS, NOT TO EXCEED 75 PERCENT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 521 QUOTED ABOVE BUT THAT A FAVORABLE DECISION ON THIS QUESTION IS NOT NECESSARY TO IMPLEMENTATION OF THE OUTLINED PROGRAM FOR LEGAL TRAINING IN AN EXCESS LEAVE STATUS.

THE PROVISO IN SECTION 517, ABOVE, REMOVING THE RESTRICTION AGAINST THE USE OF APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION SO FAR AS CONCERNS OFF-DUTY TRAINING, MAY BE TRACED BACK TO SECTION 724 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1955, 68 STAT. 355. THE PURPOSE FOR INTRODUCING THE PROVISO IS SET FORTH AT PAGE 12 OF SENATE REPORT NO. 1582, 83D CONGRESS, 2D SESSION, AS FOLLOWS:

THE COMMITTEE HAS BEEN INFORMED THAT THIS SECTION IS BEING INTERPRETED BY THE DEPARTMENT OF DEFENSE TO PROHIBIT THE PAYMENT OF ANY EXPENSES FOR LAW OR LEGAL COURSE BEING TAKEN BY PERSONNEL IN THE OFF-DUTY EDUCATION PROGRAMS OF THE MILITARY DEPARTMENTS. THE HISTORY OF THIS PROVISION CLEARLY INDICATES THAT IT WAS DIRECTED AT FULL-TIME LEGAL TRAINING WHERE THE TOTAL EXPENSE BOTH OF TRAINING AND OF THE COMPENSATION OF THE INDIVIDUAL BEING TRAINED, WAS BEING BORNE BY THE UNITED STATES. IT WAS NEVER INTENDED TO PROHIBIT OR LIMIT THE TYPE AND CHARACTER OF THE COURSES BEING TAKEN BY INDIVIDUALS STUDYING ON THEIR OWN TIME AND WHERE THE MILITARY DEPARTMENTS WERE MAKING ONLY PARTIAL CONTRIBUTIONS TO THE EXPENSES OF SUCH OFF-DUTY STUDY. IN ORDER TO CLARIFY THIS INTENTION, THE COMMITTEE RECOMMENDS THE ADDITION OF THE FOLLOWING PROVISO:

AND IN HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, UNITED STATES SENATE, 83D CONGRESS, ST SESSION, ON H.R. 5969, ENACTED AS THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1954, 67 STAT. 336, THE FOLLOWING STATEMENT WAS MADE AT PAGE 2054 BY MAJOR GENERAL H. N. HARTNESS OF THE OFFICE OF THE SECRETARY OF DEFENSE, WITH REGARD TO A DEPARTMENT PROPOSAL TO ELIMINATE LANGUAGE IN THE BILL PRECLUDING THE PAYMENT OF TUITION OR EXPENSES FOR OFF-DUTY TRAINING:

MAY I REPEAT, SENATOR, THIS IS OFF-DUTY EDUCATION AND COMPLETELY APART FROM HIS DAILY WORK. IT IS IN THE EVENING, IT IS ON SATURDAYS OR SUNDAY AFTERNOONS, WHEN HE IS OFF AWAY FROM DUTY. THIS HAS NOTHING TO DO WITH HIS ACTUAL ON-DUTY TRAINING. * * * THIS IS SOLELY OFF DUTY TRAINING IN WHICH THE OFFICER AND THE ENLISTED MAN IS SEEKING TO BETTER HIMSELF EDUCATIONALLY * * *

IT IS CLEAR THAT THE TERM "OFF-DUTY TRAINING" CONTEMPLATES A MEMBER BEING IN AN ACTIVE MILITARY STATUS PERFORMING REGULAR DUTIES ATTENDANT TO SUCH STATUS AND CONTEMPORANEOUSLY FURTHERING HIS EDUCATION ON HIS OWN TIME WHILE NOT ENGAGED IN MILITARY DUTIES. TRAINING UNDER THE PROPOSED PROGRAM DOES NOT FALL IN THIS CATEGORY. THEREFORE, THE OFF DUTY TRAINING EXCEPTION TO THE PROHIBITION AGAINST USING APPROPRIATED FUNDS FOR TRAINING IN ANY LEGAL PROFESSION IS NOT APPLICABLE. MOREOVER, THE PROHIBITION WAS INTENDED TO COVER THE PURSUIT OF DEGREES IN LAW, THAT IS, THE TRAINING OF INDIVIDUALS FOR THE PURPOSE OF QUALIFYING THEM AS LAWYERS; AND THE TRAINING CONTEMPLATED HERE, IN THAT ITS SOLE PURPOSE IS TO QUALIFY THE PARTICIPANTS AS LAWYERS, FALLS SQUARELY WITHIN THE PROHIBITION. SEE 39 COMP. GEN. 58.